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The Verdict 3

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contents | summer 20162015 DUES NOTICE

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☐ ! Enclosed is my check payable to ACCTLA for my 2015 membership dues.

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I apply for the following type of membership: ☐ Law Student $ 15☐ Legal Assistant $ 30☐ New Admittee $ 35☐ 2nd or 3rd Year in Practice $ 50☐ 4th Year in Practice and Over $ 95☐ Sustaining Membership** Includes one year’s membership, one free admission to Judges’ Night banquet, one admission to the popular What’s New in Tort and Trial Practice seminar, and special recognition in The Verdict, at Judges’ Night, and on our website $400☐ Expert /Vendor $150

Voluntary Statistical Information:Gender: ☐ Female ☐ Male Race (check all that apply): ☐ African American ☐ Asian/Pac.Island.Membership Status: ☐ Hispanic

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4 From the President Suizi Lin

22 Member News

23 Sustaining Members

6 Diversity Pleading Shawn D. Tillis

9 Night at the Ballpark Photos

10 Man in the Mirror: Facing Unconscious Bias in the Trial Bar Erika Jacobsen White

14 Spring Cocktail Reception Photos Oasii Lucero, Oasii Photography

16 An Open Letter to Alameda County’s Plaintiff’s Bar: What is Black Life Worth Today? Rekia Jibrin

21 First Annual Summer BBQ & Potluck Photos

features

departments

4 Summer 2016

Suizi Lin

FROM THE PRESIDENT

Merriam-Webster’s Learner’s Dictionary defines “diversity” as a noun meaning : the quality or state of having many dif-ferent forms, types, ideas, etc. : the state of having people who are dif-ferent races or who have different cultures in a group or organization

According to the Cal Bar Journal, in January 2012, the “predominantly white male State Bar [is] changing … slowly.” Using the 2010 Census, the Cal Bar Journal analyzed diversity in the California Bar in comparison to the make-up of the Cali-fornia population. In 2012, 79.3% of the California Bar were white attorneys. In 1991, 91% of the California Bar were white attorneys. The percentage of white attorneys far exceeded the 57.6% of Californians who identified as “white alone” in 2010. In 2012, 39.4% of the California Bar were females as compared to the 50.3% of Californians who identified as female. In the early 1990s, 26% of the California Bar were females. While there has been an increase in female attorneys, the per-centage of California Bar membership is unlikely to match California’s population any time soon. A 2011 AM Law Daily reported a steady decline in female enroll-ment in law schools since 2002. In the top 10 law schools (except for UC Berkeley’s Boalt Hall where 52.9% were female law

students), 40% of the law students were female. The addition of “ethnic” lawyers is occurring at a snail’s pace. While Asian or Pacific Islander (API) attorneys have seen the greatest increase, the percent-age still remains less than the 13.4% of Californians who identified as API. From 1991 to 2001, the number of API attor-neys doubled from 3% to 6% and stands at 7.7%. The addition of African-American and Latino attorneys is basically stagnant. Cali-fornia’s African-Americans population is 6.2%, yet the California Bar is comprised of 2% African-Americans in 1991 and 2.7% in 2012. California’s Latino popula-tion is 37.6%. Only 3% of the California Bar were Latinos in 1991 and 4.2% in 2012. Of note, 42% of the California Bar works in Southern California — Los Angeles, Orange, Riverside, San Ber-nardino, San Diego, Santa Barbara and Ventura Counties. While a near majority of California attorneys work in Southern California and the Southern California counties have the largest Latino population in California, the ethnic disparity between the attorneys and the community they represent is staggering. Every year, law schools matriculate young attorneys to join our ranks and to pay State Bar dues. Despite the addition of these new and hopefully diverse attorneys,

for various cultural, social and economic reasons, I highly doubt the California Bar will ever exactly match the composition of Californians. For that reason, when I think of diver-sity, I don’t just look to recruit attorneys who are female, LGBT, Asian, African or Latino to join ACCTLA. I do not want to be an organization that recruits non-white males and then profess to claim we are diverse. I don’t want to be the token Asian female that somehow magically makes the group I join become diverse just for having paid dues. In my opinion, diversity should be an amalgamation of both meanings. It should be a group of males, females, LGBTs, Asians, Africans, Latinos and Whites with a quality and state of mind of openness and (hopefully) acceptance. We should recognize what makes us unique and the same. We should be willing to help and criticize each other and not be afraid that others will wonder if our actions are biased. We should mentor the next generation so that the biases, whether overt or hidden, are recognized and understand how these biases impact our decisions. I’m asking ACCTLA’s membership to self-reflect. Look at the attorneys you work with and network with, at attorneys to whom you refer cases and those who refer cases to you, at the opposing coun-sel and the judges. Is there something in

What is Your Definition of Diversity

The Verdict 5

Executive DirectorMariana Harris

Alameda-Contra Costa Trial Lawyers’ Association 4450 Mira Loma Drive, Pittsburg, CA 94565

925-257-4214 • www.acctla.org

2016 OfficersSuizi Lin, President

Marjorie Heinrich, President-Elect Michael Gatto, Treasurer

Erika Jacobsen-White, Executive Secretary

Cat CabaloFulvio CajinaNick CasperRobert GrayCatherine HaleyAbraham HillsmanJo Ann KingstonLia MarksKristoffer MayfieldValerie McGinty

Celia McGuinnessLaura RamseyWilliam RuizJohn SchreiberRobert SchwartzShawn TillisJoseph TomasikTodd WalburgJayme Walker

Board of Governors

Peter AlfertBryce C. AndersonKelly BalamuthRichard J. BaskinRichard D. BridgmanLyle C. Cavin, Jr.Stephen H. CornetA. Charles Dell’ArioSteven W. DerbyBrian P. EvansDaneen C. FlynnWilliam Gagen, Jr.William D. GibbsJ. Gary GwilliamMatthew HaleyJohn HallbauerMolly HarringtonDavid HicksPeter J. HintonEric H. IvarySteven Kazan

Micha Star LibertyMichael J. MarkowitzDavid McClainAlexis McKennaPatrick J. McMahonAnthony PetruPaul L. ReinElise R. SanguinettiEric SchnumacherRobert G. SchockJulia SherwinAaron SimonRichard J. SimonsScott H.Z. SumnerJohn M. StarrLeroy F. VadneyR. Lewis Van BloisWilliam F. WhitingJim W. Yu

Past Presidents

THE VerdictA publication of the Alameda-Contra Costa

Trial Lawyers’ Association- Since 1970 -

EditorShawn D. Tillis

Winer, McKenna & Burritt, LLP1999 Harrison Street, Suite 600

Oakland, CA 94612 • 510.433.1000

your actions with those around you that was due to a bias, whether good or bad? Per our editor extraordinaire, Shawn Tillis, “know thyself.” Mentor a young diverse attorney. Hire a young diverse attorney who meets your hiring criteria. Promote a diverse attorney whose talents and experience have con-tributed to your firm. While the California Bar most likely will never match the make-up of Califor-

nia’s population, I’m hopeful that ACCTLA can be more diverse than any other association. u

— Suizi Lin is the principal of the Law Offices of Suizi Lin, representing those injured in automobile collisions, motorcycle collisions, bicycle incidents, dog bites, premises liability cases and governmental torts. She is a graduate of Loyola Law School, Los Angeles and UC Berkeley.

,

Mentoring Program

Take advantage of ACCTLA’s Mentoring Program to improve

the quality of litigation in our courts. Attorneys who call will

be referred to a mentor attorney for a free consultation. The

mentor will not prepare your case but will assist you in your

approach to the case.

This program is not just for newer attorneys, but also is avail-

able for seasoned practitioners who run into problems or

simply want to bounce ideas off another seasoned prac titioner.

The mentors — who are all ACCTLA members — have varied

degrees of experience in varied areas of the law, and can address

your concerns regarding Motions in Limine, jury selection,

problems that arise during trial or issues relating to proposed

instructions, or questions involving any of the earlier stages of

litigation.

For further information, please contact:

Mariana Harris

925.257.4214 • [email protected]

6 Summer 2016

and if you don’t know, now you know . . . —Juicy, The Notorious B.I.G.

In The Verdict’s spring edition, I announced that I would be devoting the entire sum-mer edition to the topic of diversity in the California plaintiff’s bar. In April 2016, I sent out an email to our members asking for submissions on this topic. However, from our 227 members, the overwhelm-ing majority of whom are white and male, I received three submissions. All the sub-missions were from women and one of them was from a non-lawyer academic. In the email that I sent out in April, I expressly stated that “this is not a test.” However, in a sense it was. That statement was meant to test for apathy — to show that the true reason for the lack of diver-sity in the plaintiff’s bar is complacency. In this article I will try to articulate my perspective on this phenomenon. What originally sparked my interest in writing about diversity was an article written by a dynamic trial attorney, “Joan,” in a past edition of a magazine targeted towards the plaintiff’s bar in California. In her article, Joan discusses an encounter with a male colleague at a cocktail party whom she pseudonymously calls “Joe.” In response to Joe’s comment that his orga-nization needs diversity Joan asks him, “Why do you think your organization needs diversity?” “Well . . . diversity is good,” Joe responds. “True, but why?” says Joan. “Because we need it,” says Joe. “But why do

you need it . . . what do you hope to accomplish?” Joan presses. However, Joe doesn’t really answer this last question. In place of an answer, there is a “pained, uncomfortable look . . . and the shrug of his shoulders” with which Joan says she has become all too familiar. To defuse the awkwardness and end the encounter, Joan asks Joe a question to which she already knows Joe has an answer:

Joan: How would you like to increase diversity in your organization? Joe: Well, I’d like you to join our diver-sity committee!

The encounter ends there. The re - mainder of Joan’s article is devoted to steps that Joan herself has taken to improve diversity. Joan’s article left me unsatisfied and bothered; not because of the article itself but because of how the conversation with Joe ended. I really wanted her to push him more, to see if he really understood why diversity is important. However, I can understand why she stopped pressing Joe and gave him an easy out. I would probably have done the same thing. For me, continuing to confront Joe would have only made me frustrated and angry, and, moreover, risked confirming my suspicion that the real reason why Joe and

people like him don’t understand why they want diversity is because they don’t really want it; they don’t need it and thus will never have the incentive to make the personal sacrifices necessary to increase diversity in the plaintiff’s bar. Better to end the conversation with Joe and chalk it up to just another awkward encounter with the clueless than risk confirming something that you do not want to be true and being overwhelmed by feelings of anger and alienation. Even after reading Joan’s article I still wasn’t planning on writing about the lack of diversity in the plaintiff’s bar. Then I opened up the 2015 CAOC Convention issue of Forum magazine and what I saw was too much. Virtually everyone in the magazine is white. Nearly all the sponsors and advertisers are white. All the articles are written by white lawyers. All of the award finalists and recipients are white. All of the past presidents and executive committee members are white. There is literally one black male in the entire magazine. On the back of the magazine there is a picture of the members of one the most prominent Southern California plaintiff law firms. Every lawyer is white. Of the firm’s 15 lawyers only two are women. It says that the firm was rated by U.S. News as one of the best law firms in the nation

Diversity Pleadingby Shawn D. Tillis

The Verdict 7

in 2015. Clearly, diversity was not part of the criteria. How is this possible in Cali-fornia in 2016?! As a black male, when I see pictures of law firms like this, it tells me in no uncertain terms that I need not apply, that I do not belong. During my sophomore year at U.C. Santa Cruz, I joined a diverse fraternity instead of a historically black fraternity. When someone asked me why, I told them that I had grown up in an all-black neigh-borhood. The question really didn’t make sense to me. Why would I encase myself in homogeneity rather take advantage of an opportunity to be around people from different perspectives and socio-economic backgrounds? Although exposure to peo-ple of various ethnic and socio-economic backgrounds (the other) was scary to me, I felt that what I had to gain far outweighed the risk. This exposure was as exciting and valuable to me as learning new languages. I jumped at it. I wanted to experience the world in all its variety. Why don’t prominent plaintiff law firms like the one above have the same motivation and hunger for diversity? Why doesn’t it bother them that in 2016, in a state that is majority minority, their firm is all white? How can they represent so many people of color year after year and not realize that they themselves are rep-licating the very power structure that perhaps brought many of those clients to their offices in the first place? As with everything difficult, the answers are complex and multi-faceted. Most people are just scared ****less (rhymes with witless) about the topic of diversity and want no part of it. They are afraid of the other, and make sure they are never confronted with that fear. Interestingly enough, this includes people of color. In the vignette above, Joan is bothered by Joe’s ignorance but in pressing him for a clearer answer, she leaves herself vulner-

able to receiving an answer that might hurt her feelings (e.g. “I don’t care about diversity — i.e. your inclusion — as much as you do . . . and this does not bother me,” or “Diversity is not something that is important to me”). Sometimes it’s just easier and less painful to stop pushing for diversity and endlessly asking others to agitate for it. Sometimes it’s easier for a firm to form a diversity committee and stop there. I wonder what would have happened if, instead of giving Joe an easy out by asking “How would you like to increase diversity in your organization?” Joan had said “You know, it really bothers me that you don’t know why diversity is important to you.” I imagine Joe responding, “I’m sorry, why does it bother you?” Assuming that the conversation doesn’t devolve into a shouting match, what is said after this really doesn’t matter. What matters is that both people are open and honest with each other about a sensitive topic; in other words, vulnerable to the other. If handled well, this vulnerability will set off an exchange that will build something between the two of them that neither intended when the conversation first started. Each will be impacted more pro-foundly by the other’s perspective or point of view, which will leave a positive and lasting imprint on each other’s personality. Vulnerability is the secret path to diver sity. Without it we will never achieve diversity, no matter how many committees we form. This is the reason I believe there was a breakdown in communication between Joan and Joe. Both talked to each other as if diversity were just an outcome. Diversity is not only an outcome, it is a dynamic state, achieved through commu-nication and action. The fact that achiev-ing diversity requires action means that a language must be constructed and deployed in every individual exchange in order to

talk about it. It is in the “talking” that one feels and understands the value of diversity, why it is as precious and necessary as oxygen. However, before one can talk about diversity one has to be vulnerable to the other in the moment of recognized difference — that is, one must ask a ques-tion that risks a response that is deeply hurtful to him or her. The type of vulnerability I am talking about is in contrast to silence. Silence is not the opposite of vulnerability but is rather the “not-vulnerability,” if you catch my drift. Silence is fear. Silence is retreat and refuge. Silence is indifference. Silence is passivity. Silence is how enmity festers. Silence allows exploitation. With respect to diversity in the plaintiff’s bar in Cali-fornia in 2016, silence is immoral. However, silence is the prerogative of the majority. It is how organizations like the CAOC can publish the above-mentioned Forum magazine edition and not actually see its lack of diversity — not be alarmed by it, and not see it as a symp-tom of a larger crisis. When I picked up that magazine and saw what was inside — or rather what was not inside — I felt hurt and like a fool. I felt completely alienated from an organization of which I am a member. It was a very surreal moment for me. What made the encounter more pain-ful was the thought that the plaintiff’s bar professes to be open, progressive and tolerant . . . to look out for the little guy. If an organization like this can publish a magazine displaying gross underrepresen-tation and not flinch, then what hope is there? After a while, a person just gives up, tries to forget that there is a problem. In 1990, people of color were only 43% of California’s population. In that year whites comprised over 90% of the California Bar. Today, people of color are over 60% of California’s population, yet the California Bar is still nearly 80% white.

8 Summer 2016

This is a total fail, not to mention an enormous waste of untapped talent. How many diversity committees and task forces have we formed since 1990? How many more do we have to form before realizing that whatever we are doing — it just ain’t working? If this were a prize fight the referee would have called it. If this were an employment discrimination case we’d be arguing for liability based on disparate impact and ineffective policies. On one level, the reason why Joe does not understand why diversity is important to him is because he doesn’t have to. The lack of diversity in the Bar does not impact him the way it impacts ethnic minorities. He is a direct beneficiary of the status quo. As it is, he has a greater chance of getting a job, working at a top firm, getting paid a top salary, being mentored and connected, and leading a prestigious legal organization. Why would Joe ever want to do anything to change this? Why would the lack of diversity ever bother him as much as someone who is excluded because of their ethnicity or gender? Why would he ever be bothered by the fact that, although he leads a diversity committee, he doesn’t know or understand why diversity is important? Joe can afford to be ignorant for the same reason people of color and women are underrepresented in the California Bar. Underrepresentation in the Bar follows this country’s long history of entwined eco-nomic, legal, socially sanctioned exclusion. In other words, the reason for our lack of diversity is structural — and the state of blissful ignorance and complacency is the structure’s bequeathal to the privileged. However, while Joe is not personally responsible for the system that dispropor-tionately benefits him, if, once aware of this disproportion, he remains silent, does nothing or engages in half-assed remedial measures, or makes excuses whilst accept-

ing the spoils of the status quo, he is an accessory after the fact. Joe has to do more than just form a committee and ask people of color to join it. He has to endeavor to engage with people like Joan — really engage. He has to question his own beliefs and examine his failings. He has to actively seek out black and brown talent; to make a com-mitment to interview at least one person of color when a position opens up in his firm. He has to challenge his own colleagues and people in his law firm — especially those who disingenuously or naively claim they don’t see race and hire only based on merit. He has to engage with those who purport to be offended by the very notion of the subject of racial underrepresentation and who react as if they are being attacked when the subject is raised. He must be brave. He must expose himself to ridicule, scorn, indifference, and silence in the pur-suit of remedying this imbalance. He must try. He must be vulnerable. As some of you know, I am the first in my family to go to college. When I was about five years old I more or less told my then 20-year-old mother that I was going to be a lawyer when I grew up. I remem-ber the look on her face when I told her — half amused, half adoring. But I was serious when I said it. I knew I was going to be a lawyer because I knew I wanted to be powerful like the lawyers I saw on television. I wanted to feel safe, not power-less, and above all I wanted to protect people from harm, including my mother. As I was finishing my law school appli-cations I learned that my mother had been murdered. By this time she and I had been estranged for many years — since I moved out when I was 16 to live on my own. She was a crack addict living on the streets of San Francisco and selling her body for drugs. The guy that killed her was a john of sorts. Kamala Harris prosecuted him.

The trial took place during my second year finals. For a week I went back and forth between the law library and the courthouse. Traveling back and forth between my old life and new life, between the different worlds I had lived in and their different experiences and perspec-tives, eventually realizing that I was going to be okay because of these very diverse experiences. Without mustering the bravery needed to bring about change, to be honest, to be vulnerable, and to be active, we will never reach diversity in the California Bar. With-out honesty and vulnerability we will continue to get outcomes like the promi-nent plaintiff law firm mentioned above and the less than diverse display in the above-mentioned CAOC magazine. We will continue to form committee after committee and end up in the same place we are now, wondering why it is we cannot improve diversity in the plaintiff’s bar. We are plaintiff’s attorneys. We can and must do better. This issue is not going away. The current socio-political climate cries out for solutions to entrenched racial and gender disparities. As plaintiff’s attor-neys — the torchbearers of the civil rights movement — our organizations should be at the forefront, if not ahead of, the curve in this struggle. Really, the time for apathy and silence is over. u

— Shawn Tillis is an associate at Winer, McKenna & Burritt, LLP focusing on personal injury, employment and organization harassment and discrimination, and doctor and psychotherapist sexual abuse and malpractice. He is a graduate of Golden Gate Univer-sity Law School and U.C. Santa Cruz. He is a member of the Board of Directors for ACCTLA and the Federal District Appellate Project.

The Verdict 9

Night at the Ballpark—May 27, 2016 —

Sponsored by:

JAMS and Ringler Associates

Presented by:

CA OC New Lawyers Division and ACCTLA

10 Summer 2016

The plaintiff’s trial bar remains over-whelmingly white and male. Indeed, 88% of all lawyers are white.1 Although the numbers, when you can find any at all,2 are bad for the legal profession as a whole, people of color and women have a better chance of being hired, acting as first chair, or becoming partner at a corporate defense firm than they do in plaintiff-side practice.3 Let that sink in. For example, looking solely at gender, among all women who are lead counsel in civil cases, just 40% represent plaintiffs compared to 60% representing defen-

dants.4 This reality is not going to change as long as the white male hegemonic normative continues.5 We are bolstering a system of production — one that reinforces the very ideals we purport to fight against. This “change work” requires movement out of the silence of colorblindness and beyond white guilt. Beyond tokenism. The cognitive dissonance required to sit silent given the current state of our profession is untenable. One need look no further than some of the recent decisions coming out of the United States Supreme

Court to examine this interplay. On the one hand, the Court affirmed that dis-crimination must play no role in jury selection. On the other, the Court con-firmed that we do, indeed, live in a police state — one that allows even suspicionless stops of our citizens. Foster v. Chatman (May 23, 2016) 2016 U.S. LEXIS 3486; Fisher v. University of Texas at Austin (June 23, 2016) No. 14–981; Utah v. Strieff (June 20, 2016) 2016 U.S. LEXIS 3926. The goals of a decision like Foster are laud-able, but they will not prevent lawyers

Man in the Mirror

“[B]ias often deceives its host by

distorting his view

not only of the world around him,

but also of himself.”

People v. Williams (1981) 29 Cal.3d 392, 402

Facing Unconscious Bias in the Trial Bar

by Erika Jacobsen White

The Verdict 11

from continuing to consider race, sex, disability, etc. as factors in jury selection, whether consciously or unconsciously. Further, the goal of purging bias from jury selection is meaningless when cast next to a decision like Utah v. Strieff, where Justice Thomas disregarded hundreds of years of historical data in stating that “there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Utah v. Strieff 2016 U.S. LEXIS 3926, *16. It was this alter-nate reality that Justice Sotomayor flipped in her scathing dissent:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instruct-ing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights.

It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the count-less people who are routinely targeted by police are “isolated.” They are the canar-ies in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. Utah v. Strieff (June 20, 2016) 2016 U.S. LEXIS 3926 at pp. 34–35 (J. Soto-mayor dissenting).

This “double consciousness” reaches into the privatization of our judicial system and the commodification of our civil rights. Let’s call it what it is. Forced arbitration means justice is for sale. Privatized prisons mean people are for sale. It sounds famil-iar, because it is familiar — it is what this country was built on. All of this, while our judiciary continues to be defunded, and while barriers continue to be erected for victims of discrimination and poor people to gain access to the courts. So, we in the plaintiff’s bar fight for court funding. We fight against forced arbitration. We fight against police misconduct. We fight against employment discrimination. We fight against insurance companies that have commodified the value of pain. Then we are silent. We do not critique and fight against our own participation in this system. We do not critique our own employment practices, our own treatment of members of our profession, or our treatment of our clients. Instead, we relegate “Diversity Committees” and “Women’s Caucuses” to corner tables, and give “bias” talks for MCLE credits that often amount to noth-

ing more than war stories that we can nod our heads at, thinking “what a shame,” “but look how far we have come.” Access to justice means nothing to the people we serve if that justice is not real — even within our own ranks. It is time that we examine not only what we are fighting against, but what we are fighting for. The uncomfortable silence surround-ing the issue of “diversity” within the plaintiff’s bar is emblematic of the insti-tutionalized bias that pervades every aspect of the judicial system. It is the same silence that white people feel when asked to confront racism. It is the same silence that men feel when they are asked to confront sexism. It is the same silence that cisgender straight people feel when asked to confront homophobia and transphobia. It is the same silence that many feel when they are witness to mental health issues or find themselves in the presence of folks with disabilities. This silence is the silence of the comfortable. It is the silence of privilege. It is a silence of “good inten-tions” that allows one to sleep at night. It is the silence of position. It is a silence of wealth. It is a silence that believes that your outrage at oppression is the same as living in oppression. It is the silence of believing you have a “pass” because you “do good work.” It is a silence that believes you know what is best. It is a silence born from a place of choice. It is a silence that can be activated when things become too uncomfortable. It is a silence that preserves the status quo. It is this silence that we must critique. We cannot critique what we will not speak of. Critique is messy. It is loud. Against this backdrop came the recent killings of Alton Sterling and Philando Castile, where it was communicated, yet again, that you are subject to trial by fire simply for the color of your skin. In the sentencing of the Stanford rapist it was

12 Summer 2016

communicated to women that they are responsible for their own rapes, the judi-ciary being more concerned about the impact a prison sentence will have on a white male rapist for his “20 minutes of action” than the survivor of his offense. The implicit bias that runs through these cases is an institutional one. Yet, in con-versations I have had with well-meaning “progressive” lawyers around these issues, there was a perceivable lack of outrage, confusion about the goals of the new civil rights movement or Black Lives Matter, a marked refusal to call out sexist lawyers and judges, and distancing. This distanc-ing is dangerous, and a barrier to growth. As trial lawyers, we should, more than anyone, be willing and able to examine our own reptilian brains and challenge how our sense of safety, territory, and survival is triggered when we are asked to challenge the hegemonic norm. Yet, we seem unable or unwilling to confront the silence in ways that can bring about meaningful change. We remain unwilling to be vulnerable. In one exchange wherein I raised the issue of examining implicit bias within our ranks, I was met with frustration, offense, and confusion. First, there was surprise that I would raise implicit bias among our members as an issue at all — a sense that surely this group was immune from such offenses. Second, there was an unstated assumption that I must be a person of color, and in response I was directed to take the conversation offline and to consult the Diversity Committee of that organization. Finally, when a Black lawyer participating in the conversation expressed upset and frustration at these assumptions, the implicit bias that they demonstrated, and the relegation of diver-sity issues to some other forum (which was run by people of color), he was told, essen-tially, to stop overreacting. Everything

about exchanges like these deserves exam-ination. The silencing effect of ex changes like these balloons outwards. Building from places of guilt and privilege, it exter-nalizes in the form of silencing others. It tells historically discriminated members of the bar that they are only welcome if they conform, but do not dare to critique the judicial system we work within. It asks oppressed people not only to rise in the face of their own oppression in the hopes of capturing equality and humanity, but to carry our guilt on their backs as they do. We can do better. If we, as trial lawyers, and especially those of us who are in the 88% of white lawyers, are going to view ourselves as change agents, then we have to be willing to — at the bare minimum — confront our own implicit bias and make room for the justified anger and distress that comes from the constant onslaught of bias in our own ranks. I, for one, have made many mistakes along the way. Whether consciously or not, I have silenced others. I have failed to make room. I have stumbled in an effort to assuage my own guilt. I have wrongly made assumptions based on my own bias. I have reacted in outrage when confronted with my own perpetuation of the norms I deeply wish to deconstruct. Indeed, I have done this with some of the people I love the most in my life. However, we must do that work if we are going to shift the paradigm of our profession — and of our country. If we want to see true change, rather than merely profiteering off of a system that continues the pattern of oppres sion, we must open ourselves up to stepping aside. To listening. To doing the heavy lifting. To being vulnerable. To starting with ourselves. I believe that we have members here in ACCTLA, and in the trial bar as a whole who are smart enough, strong enough, and care enough to face the growth and work required to

make change. I believe this is not only part of our mission — it is central to it. Thus, I invite you to join me. Take a look at the man in the mirror.

— Erika Jacobsen White is the principal of Jacob-sen White Law, where she represents employees, sexual assault victims, and the injured. She has been designated as a Super

Lawyers “Rising Star” every year since 2012. Erika currently serves as the Secretary for the Alameda-Contra Costa County Trial Lawyers’ Association. Erika believes in fighting hard not only for results, but to empower her clients through the judicial process. u

1American Bar Association, Lawyer Demographics 2016, http://www.americanbar.org/content/dam/aba/adminis-trative/market_research/lawyer-demographics-tables- 2016.authcheckdam.pdf. 2Recognizing the gap in this critical data in our Califor-nia plaintiff’s trial bar, the Diversity Committee of the Consumer Attorneys of California has undertaken a survey of diversity data for the organization. For more information, please contact the Diversity Chair, Casey Johnson or CAOC’s Chief Operating Officer, Laurie Klimchock. 32016 Commission on Racial and Ethnic Diversity in the Profession, Goal III Report, The State of Racial and Ethnic Diversity in the American Bar Association (2016) at p. 44, http://www.americanbar.org/content/dam/aba/adminis-trative/racial_ethnic_diversity/redgoalthreereport.authcheckdam.pdf ; Scharf, Stephanie A., et al., First Chairs at Trial More Women Need Seats at the Table, A Research Report on the Participation of Women Lawyers and Trial Counsel in Litigation (2015) http://www.americanbar.org/content/dam/aba/marketing/women/first_chairs2015.authcheckdam.pdf, pp.11-12; Rhode, Deborah L., May 27, 2015, The Washington Post, “Law is the least diverse profession in the Nation and Lawyers aren’t doing enough to change that,” https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/.4First Chairs at Trial More Women Need Seats at the Table, A Research Report on the Participation of Women Lawyers and Trial Counsel in Litigation (2015) http://www.americanbar.org/content/dam/aba/marketing/women/first_chairs 2015.authcheckdam.pdf, p. 11. 5Pearce, Russell G. (2005) White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L.Rev. 5.

The Verdict 13

TRIAL LAWYERS’ ASSOCIATION

Annual Fall Cocktail Receptionwith special guest

Contra Costa County Trial Judge of the Year

JOHN W. KENNEDYAll ACCTLA members, Superior Court Judges and Commissioners

from Contra Costa County and Alameda County,Appellate Justices, Northern District Federal Judges,

Magistrate Justices and their guestsare invited to attend

Thursday, September 29, 20165:30 - 7:30 pm

Lafayette Park Hotel & Spa3287 Mt. Diablo Blvd., Lafayette

Please join us for wine, beer, soft drinks and hors d’oeuvres

Please respond by Friday, September 23, 2016to Mariana Harris

[email protected] - or - 925.257.4214

If you are not a member of ACCTLA, contact Mariana Harris for an application or pay dues at the door.

14 Summer 2016

ACCTLA’s Annual Spring Cocktail Reception

May 12, 2016 • Sequoyah Country Club

Honoring Alameda County Judge of the Year

Hon. Evelio Grillo

The Verdict 15

ACCTLA’s Annual Spring Cocktail Reception

May 12, 2016 • Sequoyah Country Club

Honoring Alameda County Judge of the Year

Hon. Evelio Grillo

To view other pictures from this and past events, or to order any pictures from the photographer, go to http://www.shutterfly.com/pro/oasiiphotos/2009

16 Summer 2016

July 29, 2016

Dear Plaintiff’s Bar: What is black life worth today? I recently sat through the criminal trial of a 30 year old black man who received a criminal sentence of two felonies and over 20 years in state prison for his involvement in an Oakland car robbery. Jonathan’s story is far from unique. The father of a seven year old and a three year old, Jonathan fit the bill of a jobless, black man with a history of drug possession and drug use since the age of seventeen. An intelligent, high school drop out, Jonathan never seemed to be able to hold down a professional job even though community members offered him odd job opportunities while intermittently institutionalized in the criminal justice system (Fine 1991). Noteworthy is that Jonathan’s family members relied on him as an emotional support; younger cousins and siblings looked to him as the fiercely loyal and loving older brother that he is. This adoration is most exemplified by the devoted sparkle of enthusiasm his children barely contain when they see him. Jonathan is just a regular guy. But unlike the case of Brock Turner, the former Stanford University all-star swim athlete who raped a woman behind a dumpster — a nondescript, everyday 23-year-old woman it seemed — Jonathan’s case did not elicit the benefit of the doubt that marked public appeal letters aimed at humanizing Brock (Kadvany 2016; Koren 2016; Stack 2016). Jonathan, unlike Brock, was afforded no benefit of doubt; Jonathan was

just another nigger. Like Brock Turner’s friends, classmates, and like his father, I too wrote a letter to the judge presiding over Jonathan’s case. I include excerpts of this letter below:

To the Honorable Judge -- :I write this letter in support of Jonathan, as faculty in the Criminal Justice Studies Department, at San Francisco State Uni-versity. The purpose of this letter is two-fold: 1) to attest to Jonathan’s growth throughout his recent criminal trial, and 2) to offer evidence in support of the court’s discretion to enable Jonathan to pursue a future as a productive member of our society rather than as a cost to our legal and correctional system. I came to know Jonathan’s case, as a concerned faculty member at San Francisco State University’s Criminal Justice Studies department. Jonathan’s mother, a parent advocate in schools nationwide, presented her son’s case to me and invited me to witness the trial proceedings that ensued. Jonathan’s case is not an uncommon one. His story, unfortunately, reverberates throughout our country’s abysmal narra-tive on cycles of criminalization affecting black men. Jonathan’s personal story of school suspension, substance use, hopelessness and a genuine loss of interest in schooling as a result of racial and economic alien-ation, while growing up without a father, forced his single mother to tirelessly advo-cate on his behalf like so many other children who are disproportionately suspended from

schooling at a pre-teen age. The evidence that zero-tolerance disciplinary policies do not correct misbehavior nor do they make schools safer or academically more enrich-ing for our most high-needs students could not be more overwhelming (American Psychological Association 2008; Morris 2012). Having been targeted by dispro-portionate punishment in middle school, Jonathan was pushed through high school and finally into a GED program. Despite the disruptions to his schooling, Jonathan’s first attempt at the GED exam — passing it no less — attests to an intelligence systemically overlooked and underestimated within the milieu of alienating and impov-erished educational conditions. The mental health stress of poverty, single-parent families, racism, interrupted schooling, and the hostility of our streets cannot be overstated in this unfortunately common national narrative. Jonathan’s history with the criminal justice system from the age of seventeen narrates not the story of a criminal, but an American story of the way systemic racism marked the individual life circumstances of a young man without a father who navi-gated and numbed his childhood and teenage development. Far from a statistic, Jonathan — like every human being in this country — is growing and remaking himself; accepting the responsibilities of adulthood, the con-sequences of poor decisions that plague us all at some point or another in our lives, relying on those who support him most to actualize the potential he sees in him-

An Open Letter to Alameda County’s Plaintiff’s Bar

“What is black life worth today?”

The Verdict 17

self. That Jonathan’s mother committed her life to working in schools as a parent advocate and supporting other families like her own, speaks to a backbone of commitment in Jonathan’s family that he undoubtedly invokes in his own process of change and growth. I wish to speak to this change from a personal perspective. Of the days that I attended Jonathan’s trial, I was most impacted by Jonathan’s impressive involve-ment in the details of his own case, and by his professionalism. This was a rare glimpse into Jonathan’s ethos for legal practice and his resolution to utilize the legal tools he had at his disposal, as an American citizen. Far from apathetic, and even while in chains, Jonathan’s demeanor was marked by a respect, professionalism, and proclivity for the law. It was the acu-ity with which he approached the details of his case that was most admirable. As a faculty of Criminal Justice stud-ies, I teach men and women who intend to be police officers, correction officers, probation officers, and lawyers. As an educator of over fifteen years at Harvard University, Stanford University, UC Berkeley, and now San Francisco State University’s Criminal Justice department, there are intuitive insights teachers have of the will that an individual possesses to do important things. Jonathan has every intention to embark in paralegal studies of his own accord and I could not think of a better candidate to pursue such legal study. The possibilities for Jonathan’s reha-bilitation and educational future that can come with your Honor’s discretion far outweigh the costs of his long-term incar-ceration in state prison. California suffers the highest per-inmate incarceration costs in the country at some $48,000 a year in comparison the costs of educating a California resident at $7,500 a year. State

spending on corrections has quadrupled over the past two decades, making it the fastest-growing budget item after Medi-caid, according to the Vera Institute of Justice, a nonprofit organization that works with governments on criminal justice policy. In addition to the direct costs to taxpayers of per inmate incarceration, the indirect, or collateral costs that taxpayers incur (such as social services, child welfare, etc. when the breadwinner of the family is incarcerated) are significant. Importantly, declines in violent crime are occurring at a time when states are reducing their prison populations by reforming sentencing laws, reducing prison time, while widening community-based supervision in tandem with social and educational support systems. A rare infrastructure of community-based sup-port for Jonathan is evidenced in family, educational, mental health, social service, and criminal justice advocates who are ready to deploy resources for Jonathan’s concrete future pursuits. I advocate for Jonathan to pursue his intellectual interests in paralegal studies. Depending on the outcomes of your Honor’s judicial discretion in Jonathan’s sentencing, I offer myself as an educational mentor and advisor in Jonathan’s educa-tional pursuits — recommending him for later admissions to San Francisco State

University’s Criminal Justice Studies depart-ment as well as admission to the Ronald E. McNair Scholars Program and the Under-ground Scholars Program at UC Berkeley for formerly incarcerated students. Indeed, Jonathan’s own involvement in the crimi-nal justice system will make him an incred-ible student, legal practitioner and future advocate for the transformation of men in our society just like him. African American historian and edu-cator Carter G. Woodson wrote in the 1930s at the height of Jim Crow America, that every man has two educators: “that which is given to him, and the other that which he gives himself. Of the two kinds the latter is by far the more desirable. Indeed all that is most worthy in man he must work out and conquer for himself. It is that which constitutes our real and best nourishment. What we are merely taught seldom nourishes the mind like that which we teach ourselves” (Woodson 1933). It is in this spirit, and with a deep respect for the laws of justice, that I ask your Honor to enfranchise Jonathan’s unclaimed desire for education by striking prior felony convictions under the Three Strikes Laws, so as to enable Jonathan a just path of rehabilitation. I thank you for your time. Sincerely, Rekia Jibrin

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18 Summer 2016

Sitting in the Alameda Superior Court House, watching Jonathan shuffle his shackled feet into the courtroom in orange jail attire, I asked myself how it was that this familiar, historical trope of shackled (anti-)blackness had become so normalized? It wasn’t days after the acquittal of the policemen in the Rodney King beat-ing, that a news report stated that public officials of the Los Angeles judicial system routinely deployed the acronym N.H.I. to cases involving the breach of the rights of jobless, black males of inner city ghet-toes. N.H.I. meant ‘no humans involved’ (Wynter 1991). Stephen Jay Gould argues that systems of classification direct our thinking and order our behaviors (Gould 1983, Wynter 1991). Where did this dehumanizing classification of black people come from — classifications held by police, the judicial system, lawyers, jury members, judges, not only in high profile cases but in the routine cannibal-ism of our judicial-prison system on the most unremarkable black men, women and children? Whereas Brock Turner embodies the logic of what it means to be both human and North American (White, middle-class, college-educated, possibly suburban) Jonathan, the jobless, school drop out/push out category of a young black man, is perceived as the Lack of the human, the Conceptual Other to being North Ameri-can — the Conceptual Other on whose shoulders society’s sanctified moral uni-verse so righteously stands (Wynter 1991). Jonathan’s very existence outside the ‘sanc-tified universe of obligation’ that Brock lives within, marks both the boundaries of its enclosure around who constitutes a human (White and middle-class) as much as it defines the boundaries of what life pos-sibilities are too often foreclosed (reha-

bilitation, discretion in sentencing, educa-tional options, early release). This “‘sanctified universe of obliga-tion’ — a circle of people with reciprocal obligations to protect each other whose bonds arise from their relation to a deity or a sacred source of authority” — is the classification that enables a dominant (White) group to “misrecognize those outside the sanctified order of obligation as aliens, as strangers who were, as if it were, of a different species; strangers, ‘not because they were aliens but because the dominant group was alienated from them by a tra-ditional antipathy’ (Fein 1979)” (Wynter 1991, 45). It is within sanctified bounds of this logic that we can begin to under-stand the countless Jonathans, Ramarley Grahams, Oscar Grants, Rekia Boyds, Ayanna Jones, Tamir Rices — the routine list of executions continues. While systems of slavery and Jim Crow utilized racial terror and violence for the sole purpose of capitalist profit and racial entitlement through cotton produc-tion and institutionalized second-class citizenship (Fields 2003, Alexander 2010), the social effects of N.H.I. place countless, jobless black families outside the ‘sancti-fied universe of obligation’ through the genocidal effects of incarceration and the elimination of black young people through everyday normal, extrajudicial police murders and judicial proceedings. The gains of the civil rights movement in affording black citizenship now contains, restricts, and shortens the lives of jobless, black citizens with the explosion of sys-temic imprisonment (Wilson 1980, Davis 1998, Gilmore 2009). This criminalization of black citizens in America has made a stunning evolution, post-antebellum to this current political moment when the extrajudicial murder of black citizens by police — rather than by everyday citizens

and the police as was the case during the Jim Crow lynch era — reflects the dispos-ability of black life precisely because black citizens can and are imprisoned at dis-turbing rates (Davis 1998, Gilmore 2009, Alexander 2010, Kelley 2016). Jonathan knew that he was going to get serious time. Though he didn’t physi-cally harm anyone, nor did he possess a firearm, he was arrested, charged, and later identified as being present at the car robbery in Oakland. As we walked into the courtroom, I saw Jonathan in a shirt and tie for the first time, facing the judge, escorted in by sheriffs; still, in the custody of the state. As with other times when I had observed his proceedings, he continued to exercise every right afforded to him by law and procedure. Right before his sen-tencing, Jonathan fired his criminal defense lawyer and asked to represent himself. He was studying the law behind bars, after all. Whether or not we knew why he made the choices he did that day, Jonathan exercised every legal right he had as a United States citizen and as a human being under the control of the state. As a teacher, I encounter too many students who have lost sight of self, who only understand themselves within the constraints of ideologies that they’ve been shaped by, and fed. But when you see one student, one person, exercise their right to independent thought and reason, how-ever illogical it may seem in the moment, that is the moment that conscientious hope is born. That is the moment when struc-tures of control and constraint bred by inhumane, capitalist systems of domi-nation in our society get exposed and challenged. It is in these moments that I wish to remind legal experts, officers of the court, that the law is fought for, created and is not cosmological truth; that its enlightened, ego-centric universalism,

The Verdict 19

holds no logic when a human being, de-humanized by these so called law of justice, recognizes him or herself as human beyond the sanctified logic and practice of the system. Jonathan’s assertions of agency were bigger than Jonathan; knowingly or unknowingly, what Jonathan exerted was for us all. He asserted all that was human, and humane for us. Inadvertently, his unremarkable self punctured through the conceptual apparatus that has always relegated him to a ‘zone of nonbeing,’ the epidermalization of inferiority that Frantz Fanon characterizes as both an economic and psychological phenomenon (Fanon 1967). When human beings assert such humanity, we do so beyond the weight of a legal system that has for too long legitimated itself through dehumanizing Conceptual codes of Otherness. Thus, these assertions rupture and expose the law’s ideological and material legitimation of white supremacy and racial capitalism (Gilmore 2014). For one only needs to consider why a judge would choose to impose a million dollar cost on us as tax-payers versus a $30,000 cost of educating a man who wishes to learn. However, given Jonathan’s existence outside the logic of the middle class/White classificatory schema of North American humanness, his assertion of legal agency was dramatically denied by the judge. Far from perceiving his acts of agency as humanizing, Jonathan’s actions were read instead as disobedience to the state. The judge criminalized and sentenced Jonathan; and, she criminalized and sen-tenced his family. While she had discretion, she used her discretion to punish. Deter-mined to keep Jonathan away from his community, from Oakland, and from his family, she pursued justice through harsh sentencing. Jonathan wasn’t the poster

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Telephone: 510-446-1922email: [email protected]: www.vanbroeklaw.com

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20 Summer 2016

child of black respectability politics. Instead, he was the poster child of our failed systems of reality, and this judge acted punitively to remove Jonathan from life. Why is this significant? It is significant in this neoliberal moment, because the very logic of white supremacy can be meted out by any and all of those who may aspire to assimilate themselves into the logic of the middle class / White classi-ficatory schema. With the full-scale pri-vatization of public life, both race and class matter; they matter precisely because the most egregious forms of class resentment rationalize the incarceration of the lives of men who look and act like Jonathan — the jobless, black poor of the inner city ghettoes (Wilson 1980; Ignatiev 2016). So then, the question of what black life is worth today, has also to do with how we choose to fight to embrace this life within our moral universe of sanctified obligation and most importantly, how we wish to re-create the boundaries of that universe. First, we must ask ourselves what we have to do with the putting in place of a classifying logic that judicially labels poor, black people as excluded from a moral universe of obligation — that sentences the Michael Browns, Kalief Browders, Freddie Grays, Philando Cas-tilles, Alton Sterlings as disposable thugs — and publicly embraces a Brock Turner. The jobless inner city N.H.I., “does not have to inquire into the truth. He is, they are, the Truth. It is we who institute this ‘Truth.’ We must now undo their narratively condemned status” (Wynter 1991, 70). What is our responsibility as legal and educational professionals in the making and most importantly, in the unmaking, of such classificatory logics of race and class dehumanization? What is our action going to be? How defining in this struggle for justice will your public response be, as a plaintiff’s bar? And what

actions will your professional community assert about the worth of black life in our society today?

Sincerely yours,Rekia Jibrin

— Rekia is a transnational

feminist scholar who writes about schooling, gender,

violence and race. Currently, she is faculty at San

Francisco State University’s Criminal Justice Studies

Department. Rekia’s most recent scholarly work focuses

on public schools, Restorative Justice, policing and race.

Bibliography

Alexander, Michelle. The New Jim Crow: Mass Incarceration in and Age of Colorblindness. New York: The New Press, 2010.

American Psychological Association Zero Tolerance Task Force. “Are Zero Tolerance Policies Effective in Schools? An evidentiary Review and Recommendations.” American Psychologist 63(9): 852-862, 2008.

Brown, Rebecca, Williams, Junious, Marxer, Sarah, Spiker, Steve, Chang, Anny, Feldman, Alison & Budi, Eron. African-American Male Achievement Initiative: A Closer Look at Suspensions of African-American Males in OUSD. 2012.

Carbonell, Jaime cited by M. Mitchell Wardrop in Man-Made Minds: The Promise of Artificial Intelligence. New York: Walker and Co. 1987.

Clark, Kenneth B. Dark Ghetto: Dilemmas of Social Power. Harper and Row Publishers, 1965.

Davis, A. “Racialized Punishment and Prison Abolition” in Davis, A. Y., & James, J. The Angela Y. Davis reader. Malden, Mass: Blackwell, 1998.

Fanon, Frantz (1967). Black Skins White Masks. Trans. Charles Lam Markman. New York: Grove Press.

Fields, Barbara. “Of Rogues and Geldings,” American Historical Review 108: 1397-1405, 2003.

Fine, M. Framing dropouts: Notes on the politics of an urban public high school. Albany, N.Y: State University of New York Press, 1991.

Gilmore, Ruth, interview by Allen Ruff, A Public Affair, 88.9 WORT, March 27, 2014.

“Race, Prisons and War: Scenes from the History of US Violence.” Gilmore, Ruth Wilson. Socialist Register, 2009.

“Globalisation and U.S. Prison Growth: From Military Keynesianism to post-Keynesian militarism.” Gilmore, Ruth Wilson. Race & Class 40(2/3): 171–188, 1999.

Gilmore, R. W., & Gilmore, C. Restating the obvious. Indefensible Space: The Architecture of the National Insecurity State, 141, 2008.

Gould, Stephen Jay. Hen’s Tooth and Horse’s Toes. New York: Norton, 1983.

Henrichson, Christian and Delaney, Ruth. The Price of Prisons: What Incarceration Costs Taxpayers. New York:

Vera Institute of Justice, 2012 at http://www.vera.org/sites/default/files/resources/downloads/price-of-prisons-updated-version-021914.pdf

Ignatiev, Noel. “Race or Class” (blog). July 20, 2016. http://www.pmpress.org/content/article.php/20150720120508552

Kadvany, Elena. “Brock Turner juror to judge: ‘Shame on you’. Palo Alto Weekly, June 13, 2016. http://www.paloaltoonline.com/news/2016/06/13/brock-turner-juror-to-judge-shame-on-you

Koren, Marina. “Why the Stanford Judge Gave Brock Turner Six Months.” The Atlantic, June 17, 2016. http://www.theatlantic.com/news/archive/2016/06/stanford-rape-case-judge/487415/

Legesse, Asmarom. GADA: Three Approaches to the Study of African Society. New York: Free Press, 1973.

Lieberman, Philip. Uniquely Human: The Evolution of Speech, Thought and Selfless Behaviors. Cambridge, MA: Harvard University Press, 1991.

Maturana, Humberto and Francisco Varela. Autopoiesis and Cognition: The Realization of the Living. Dordrecht, Holland: D. Reidel Publishing Co., 1980.

Monique Morris. Race, Gender and the School-to-Prison Pipeline. African American Policy Forum, 2012.

Pew Center on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility. Washington, DC: The Pew Charitable Trusts, September 2010.

Resnick, Brian. Chart: One Year of Prison Costs More Than One Year at Princeton. The Atlantic, 2011. http://www.theatlantic.com/national/archive/2011/11/chart-one-year-of-prison-costs-more-than-one-year-at-prince-ton/247629/

Rios, Victor. Punished: Policing the Lives of Black and Latino Boys. New York: New York University Press, 2011.

Stack, Liam. “Light Sentence for Brock Turner in Stanford Rape Case Draws Outrage.” The New York Times, June 6, 2016. http://www.nytimes.com/2016/06/07/us/outrage-in-stanford-rape-case-over-dueling-statements-of-victim-and-attackers-father.html

Vera Institute of Justice. “A Prosecutor’s Guide for Advancing Racial Equity.”, Prosecution and Racial Justice Program, November 2014. http://www.vera.org/sites/default/files/resources/downloads/prosecutors-advancing-racial-equity.pdf

Wilson, W. J. The declining significance of race: Blacks and changing American institutions. Chicago: University of Chicago Press, 1980.

Woodson, Carter G. The Miseducation of the Negro. 1933. New York: A. M. S., 1977.

Wynter, Sylvia. “Columbus and the Poetics of Propter Nos,” in Discovering Columbus issues of the Annals of Schol-arship Vol. 8, No. 2 (Spring 1991): 251-286.

“No Humans Involved: An Open Letter to My Col-leagues.” Wynter, Sylvia. Voices of the African Diaspora. Vol. 8, Issue 2, 1992.

“1492: A New World View.” In Race, Discourse, and the Americas: A New World View, Wynter, Sylvia. Vera Lawrence and Rex Nettleford, eds. Washington and London: Smith-sonian Institution Press, 1995. u

The Verdict 21

First Annual

Summer BBQ & Potluck

June 25, 2016

Roberts Regional

Recreation Area

Oakland

22 Summer 2016

- VERDICTS & SETTLEMENTS -Team at Hinton Alfert & Kahn obtain a $5,450,000 Settlement against Santa Clara County Police Officer and County of Santa ClaraShortly after midnight on March 23, 2013, Mr. Gosalvez was driving his mo- ped on Hedding Street, with Dr. Pham as his passenger. Santa Clara County Sheriff’s Deputy Amanda Padilla was driving her patrol car on The Alameda. Padilla ran the red light and struck Dr. Pham and Mr. Gosalvez as he entered the intersection. Dr. Pham and Mr. Gosalvez filed suit against Deputy Padilla and the County of Santa Clara. Defendants admitted that Deputy Padilla ran the red light and struck plaintiffs. Dr. Pham and Mr. Gosalvez were taken by ambulance to San Jose Regional Medical Center. Dr. Pham suffered life-threatening injuries, including spinal fractures and internal lacerations and was admitted to the intensive care unit. Mr. Gosalvez suffered serious injuries and was admitted to the hospital as well. Mr. Gosalvez has suffered from back pain constantly since the collision, and injuries to his lumbar spine were verified on an MRI study. Plaintiffs contended that Dr. Pham remained incapacitated for several months after the collision, and due to chronic pain, has not been able to return to the practice of dentistry, and is not expected to do so in the future. Dr. Pham has returned to administrative work in the dental practice, overseeing three dental practices. Defendants contended that Dr.

Pham’s chronic pain could be lessened, allowing him to return to the practice of dentistry, and that Dr. Pham was making the same amount of money managing his dental practices as he did when he was practicing dentistry. Dr. Pham had past Howell medical expenses in the amount of approximately $211,000, and future care was estimated at several hundred thousand dollars. Dr. Pham’s past wage loss was calcu-lated to be approximately $966,000, and his future loss of earning capacity was estimated to have a present value of approximately $9 million. Mr. Gosalvez had past Howell med-ical expenses in the amount of approxi-mately $90,000, and future care was estimated at several hundred thousand dollars. Mr. Gosalvez’s past wage loss and other miscellaneous economic losses were approximately $5,400. The matter resolved at mediation with a global settlement of $5,450,000.

Plaintiffs’ CounselPeter Alfert and Teresa LiHinton Alfert P.C.

Defendants’ CounselStephen H. Schmid, Deputy County Counsel County of Santa Clara

Mediator: Judge Jamie Jacobs-May (Ret.)

Settlement Date: May 2016

Jury Awards $2,626,750 to Construc-tion Worker Injured by Defective Expansion Joint on Retro-Fit ProjectOn January 9, 2012, 44-year-old plaintiff

MEMBERnews

James Strouse, a sheet metal worker for Acco Engineered Systems Inc., was work-ing on a retro-fit project at California Memorial Stadium, an outdoor football stadium on the campus of the University of California in Berkeley. While he was attempting to cross a plywood expansion joint cover, he fell. The plywood either slipped or broke, causing Strouse’s right foot to go into one of the expansion joints, which were about 12 inches deep and 12 inches across. He subsequently fell for-ward, allegedly injuring his right knee and lower back. Strouse sued Webcor Construction, L.P., doing business as Webcor Builders, which was believed to have retained con-trol over the safety of workers on the project. Strouse alleged that Webcor failed to maintain the subject area and failed to inspect the covers, creating a dangerous condition. Webcor brought a third-party claim against Strouse’s employer, Acco Engi-neered Systems Inc., alleging that Acco was responsible. The issue of indemnifica-tion was bifurcated. Webcor claimed that there was an indemnity agreement stating that if Acco was found any percentage at fault, Acco would end up paying for the entire judgment. Strouse claimed that he felt immedi-ate pain in his right knee after his fall. He was subsequently transported to the onsite clinic, located on a scissor lift. Strouse claimed that shortly thereafter, he expe-rienced pain in his back. He eventually sought initial treatment of his right knee and back complaints through Concentra. However, he continued to work.

The Verdict 23

RICHARD J. BASKIN

JONATHAN M. BRAND

J. MICHAEL BROWN

TERRY BULLER*

JOSEPH W. CAMPBELL

WILLIAM CAMPISI, JR.

LYLE C. CAVIN, JR.

ROBERT CHEASTY

A. CHARLES DELL’ARIO

STEVEN L. DERBY

JOHN M. FEDER

GILLIN, JACOBSON, ELLIS, LARSEN & LUCEY Luke Ellis Andrew R. Gillin James Larsen Kristin M. Lucey

ROBERT B. GRAY

GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER J. Gary Gwilliam Steven J. Brewer Randall Strauss* Robert J. Schwartz Jayme Walker

CATHERINE HALEY

MATTHEW D. HALEY

MARJORIE HEINRICH

DAVID HICKS*

JOHN E. HILL

HINTON, ALFERT & KAHN Peter W. Alfert Karen Kahn

KAZAN, McCLAIN, SATTERLEY & GREENWOOD Steven Kazan David McClain Joseph D. Satterley Gordon Greenwood Denise Abrams Rachel Berkness Justin Bosl Denyse Clancy Petra DeJesus Simarjit Kaur Ryan Harris Donovan Hunter Arcelia Hurtado Andrea Huston Irena Kin John Langdoc Joseph Nicholson Ted Pelletier

2016 ACCTLA Sustaining Members

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Become a sustaining member and reap the benefits!They include free admission to Judges’ Night and the What’s New in Tort & Trial seminar.

See page 2 for the Dues Notice or call Mariana Harris, 925.257.4214

Ian Rivamonte William F. Ruiz Frances Schreiberg Denise Smith Henry Steinberg Michael T. Stewart Mark Swanson Matthew Thiel Stephanie Wargo-Wilson

JoANN KINGSTON

SUIZI LIN

AZADEH MALEK-AHMADI

ANTHONY S. PETRU

PAUL L. REIN

ROBERT G. SCHOCK

JOHN T. SCHREIBER

MARY J. SHEA

SCOTT SUMNER

R. LEWIS VAN BLOIS

JEFFREY WOLFERT

JIM W. YU

*ACCTLA apologizes for omitting these names from the previous issue

KAZAN, McCLAIN cont.

24 Summer 2016

On February 15, 2012, an MRI of Strouse’s right knee showed an anterior cruciate ligament tear. As a result, Strouse was referred to an orthopedic surgeon, who took Strouse off work in April 2012. Strouse then underwent an ACL surgery on the right knee on April 16, 2012 and was referred to physical therapy, during which he was kept off of work. Strouse continued under the care of the orthope-dic surgeon through November 2012, during which he allegedly continued to have post-surgical right knee complaints and lower back complaints. The orthope-dic surgeon subsequently recommended an MRI for further evaluation of the lumbar spine. The MRI study, which was performed on November 29, 2012, showed lumbar disc protrusions and an annular tear. In light of the findings, Strouse was referred to a spine specialist. In February 2013, Strouse transferred his care to a spinal surgeon, who recom-mended an epidural injection. Strouse also saw his primary care physician for ongo-ing issues with his back and he continued to see the initial orthopedic surgeon from time to time for his right knee. The spinal surgeon ultimately treated Strouse’s lum-bar condition with epidural injections, nerve blocks, and radio-frequency. Strouse claimed that in February 2014, he felt a popping sensation in his right hip during physical therapy for his lower back. A hip arthrogram was subsequently per-formed at a Kaiser facility in June 2014, and the arthrogram showed a femoral impingement. Treatment for his hip took place at the Kaiser facility, but it was disputed by Strouse’s workers’ compensa-tion carrier. Strouse ultimately underwent surgery on the right hip at the Kaiser facility in September 2014. In addition, he continued to see a pain management physician for treatment of his lower back.

The pain management physician remained Strouse’s primary physician at the time of trial, and Strouse completed a functional restoration program in early 2015. Webcor’s counsel disputed Strouse’s injuries. Counsel argued that Strouse’s alleged injuries were nothing more than a first aid event that should have resolved within a few weeks. The jury found that Webcor had retained control over the expansion joint cover where Strouse fell and had retained control over the safety conditions of the expansion joint cover, as well. It also found that Webcor failed to make sure the expan-sion joint cover where Strouse fell was safe for someone to walk over. The jury further found that Webcor’s negligence was a substantial factor in causing Strouse harm. However, the jury found that the expan-sion joint cover, which was designed by Webcor, was not unfit for its intended use and was not dangerous. It also found that Webcor’s misconduct was not willful. In addition, the jury found that Acco or Strouse were not negligent. The jury determined that Strouse’s damages totaled $2,626,750. After the jury returned its verdict, Judge Julia Spain found against Webcor on its third-party claim against Acco.

Plaintiff’s CounselJonathan M. Brand and Nicolis G. PetersLaw Offices of Jonathan Brand

Defendants’ CounselWilliam A. BogdanLynch, Gilardi & Grummerfor Webcor Construction, L.P.Louis C. Klein and Keith M. Ameele Foley & Mansfield, LLPfor Acco Engineered Systems, Inc.

Judge: Hon. Julia Spain

Verdict Date: April 2016

Mike Danko and Claire Choo of Danko Meredith Secure 9.5 million Dollar Verdict in Wrongful Death Case against Caltrans for Dangerous Cross-Walk in San Mateo CountyChristopher Chandler, age 62, was cross-ing El Camino Real in Atherton when he was struck in the fast lane and killed by Matthew Simon, age 69. Simon testified that, despite clear weather, he never saw Chandler until after the collision. The traffic collision report blamed Chandler for riding his bike into the uncontrolled intersection before ensur-ing that it was safe to do so, in violation of the vehicle code. Plaintiff’s counsel proved that Chandler was walking his bike rather than riding it, and that he was in the crosswalk when killed. Next, counsel proved that Chandler walked into Simon’s path because his view of the oncoming traffic in the fast lane traffic was obscured by a truck slowing down as it approached the crosswalk from the slow lane. Just as the truck blocked Chandler’s view of Simon, it blocked Simon’s view of Chandler. Plaintiff’s counsel presented evidence that marked crosswalks in uncontrolled intersections give pedestrians a false sense of security — pedestrians believe that vehicles will yield to them in the crosswalk when, in fact, the drivers of the vehicles may be unable to see the pedestrians due to surrounding traffic. Nor could drivers see the crosswalk markings to know to yield unless Caltrans takes steps to make the markings highly visible. Caltrans was aware of studies discouraging the marking of crosswalks in busy uncontrolled inter-sections and was aware of accidents else-where along El Camino. But Caltrans refuses to remedy any particular crosswalk until someone has been killed or injured in that location.

The Verdict 25

26 Summer 2016

The jury agreed that the crosswalk markings were a trap for pedestrians and thus constituted a dangerous condition of public property. They assigned 90% blame on Caltrans, and 10% blame on Simon for traveling what the experts determined to be 42 mph in a 35 mph zone. Chris Chandler had not worked for a number of years and so plaintiffs were not able to show any lost earnings. He left a wife and three adult daughters. The ver-dict was for $9.5 million. The case was tried in December and the jury hung so this was a retrial. Before the first trial, Caltrans offered $10,000. Before this trial, they served a 998 for $100,000. Judge Steven Dylina heard both trials. Mike Danko and Claire Choo had help from fellow trial lawyers Rich Schoen-berger, who provided key witness deposi-tion and trial testimony from a similar case he tried involving a crosswalk on El Camino in Millbrae; Casey Kaufman provided motions in limine that were helpful in limiting Caltrans experts testi-mony; and Mary Alexander offered some great tips on how to best present an expert.

Plaintiff’s Counsel Mike Danko and Claire ChooDanko Meredith Trial Lawyers

Defendants’ CounselIrene Moy, Helen Cramer and Ryan Jacobs for Cal. Dept. of Transportation Mark Carbone of Carbone, Smoke, Smith, Bent & Leonard for Simon Matthew

Judge: Hon. Steven Dylina

Verdict Date: July 2016

Jury awards employee $1.9 million against employer for co-worker assault and batteryOn September 11, 2012, plaintiff Gabriel

Affonso was brutally attacked at work by a coworker named Thomas Avent. Both men worked for Defendant Miguel Rocha (dba M.R. Enterprise) at the time. Approx-i mately nine days before the workplace attack, Avent was arrested on a business trip for threatening plaintiff Affonso and another employee. After Avent was released from jail, he admittedly wanted to “get back at” plaintiff for having him arrested. Plaintiff reported his concerns about Avent to Defendant Rocha, but Defendant allowed Avent to return to work after imposing a short ‘cooling off’ period. Avent attacked plaintiff at work the first time he saw him. Plaintiff asserted at trial that Defen-dant Rocha knew or should have known that Avent posed a threat of violence toward plaintiff in September of 2012, that Defendant Rocha failed to take any steps to protect plaintiff from Avent and that, as a result, Defendant Rocha was liable for negligent supervision and reten-tion of Avent as a result of his inaction. Plaintiff also maintained a claim based on a premises liability theory of negligence — because Defendant Rocha knew or should have known about Avent’s unfit-ness, plaintiff alleged that allowing Avent to enter the work premises constituted a negligent use of property that was a sub-stantial factor in causing plaintiff’s harm. The matter was tried in Solano County. Liability was contested through-out trial. Defendant argued that the workplace attack was not foreseeable and that the attacker (Avent) was 100% responsible for any harm arising out of the incident at work. Plaintiff suffered physical injuries during the attack, including multiple fractures involving the right-side facial bones and right orbital region. Plaintiff was transported by ambulance to a Kaiser

emergency room where he was diagnosed with a mild traumatic brain injury. Plain-tiff underwent surgery in the ER to repair his facial and nasal fractures. In 2013 and 2014, plaintiff’s medical care was sporadic due to his lack of insurance. In 2015 plaintiff began receiving consistent medical treatment through the VA: three of plaintiff’s VA treating providers testified at trial via videotaped deposition. In late 2015, plaintiff underwent a second surgery at the VA because of complications related to the injuries he sustained in the attack. In 2015 plaintiff was diagnosed with chronic facial nerve pain. Plaintiff Affonso received consistent psychological treatment for his emotional injuries and was diagnosed with Post Traumatic Stress Disorder by a private and VA psychologist. Plaintiff and his family members testified that he suffered flashbacks and intense fear, anxiety and depression as a result of the attack. Throughout the litigation and trial, Defendant alleged that plaintiff was fak-ing and exaggerating his injuries. Defense ex perts Dr. Mark Strasberg and Dr. Joanna Berg testified without hesitation that plaintiff was non-credible and a malin-gerer, in contrast to the opinions of all of plaintiff’s treating providers. The jury deliberated for 5.5 hours and issued a verdict for $1.9 million ($1,935,150.47).

Plaintiff’s Counsel Anne Costin, Costin Law, Inc.Denise K. Top, Top DePaul LLP

Defendant’s Counsel:Peter J. Hirsig and Adam Young McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP

Judge: Hon. Scott Kays

Verdict Date: August 2016 u

The Verdict 27

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